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TMI Blog2015 (9) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... onal value, there could be no question of the legislature providing for the same even by way of exercise of option by the dealer concerned. The matter goes to the root of the competence of the State Legislature under the Constitution to frame any such enactment and if it is not competent to enact such a measure then it is equally not competent to do the same by way of providing option for levy of tax upon the dealer in such matter. Thus, in the light of the aforesaid discussion Sub-section (5) of Section 15 of the Bihar Value Added Tax, 2005 is declared ultra vires. Consequently, the impugned orders passed by the Commissioner in the revision application as also by the Assessing authority in accordance with the same cannot be sustained and, are accordingly, quashed. - Decided in favor of assessee. - Civil Writ Jurisdiction Case No. 18626 of 2014 - - - Dated:- 4-5-2015 - Ramesh Kumar Datta And Anjana Mishra, JJ. Civil Writ Jurisdiction Case No. 19348 of 2014 Civil Writ Jurisdiction Case No. 6485 of 2015 Civil Writ Jurisdiction Case No. 4602 of 2015 Civil Writ Jurisdiction Case No. 4989 of 2015 Civil Writ Jurisdiction Case No. 2532 of 2015 Civil Writ Jurisdiction Case No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the concerned case may be taken from C.W.J.C. No. 9709 of 2014. The petitioner in the said writ petition is engaged in the business of manufacture and sale of medicines and had filed its return with the respondent Commercial Tax Authorities and paid tax on the basis of the sale disclosed, claiming exemption in respect of supply of medicine free of cost to its dealer under a Scheme which was in the nature of quantitative or trade discount on the purchase of certain quantity of medicines. The said quantity of medicines was supplied free of cost without charging or collecting any amount in respect to them. The stand of the petitioners before the Tax Authorities was that there being no valuable consideration for supply of such extra quantity of medicines, the said transactions would not amount to sale and thus, be not chargeable under the provisions of the Act. In the earlier years, the respondents were accepting the return filed by the petitioners. On the basis of an audit objection made by the Accountant General, Bihar an application for revision was filed by the Joint Commissioner of Commercial Taxes (Administration), Central Division Patna before the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the form and in the manner prescribed. Various submissions were made by learned counsel for the petitioners taking us to the scheme of the Act and the various definitions of sale, gross turnover sale price, etc. under the Act, as also provisions of Entry 54, List-2, Seventh Schedule of the Constitution of India and Section 366 (29-A) thereof to show that both under the constitutional scheme as also under the Bihar Act, the taxable event is the sale of goods, one of the principal criteria of which is money consideration for the sale. It is also sought to be pointed out by learned counsel for the petitioners that under the constitutional scheme, the tax could only be levied on transaction of sale and not otherwise and the incidence of a tax on sale or purchase could only be on the price or consideration in the sale said and not for any future price or consideration of sale which has not yet taken place. According to learned counsel, maximum retail price is not the sale price which is charged when the transaction takes place between a manufacturer and importer like the petitioners and their wholesalers, as in the present matter. To cut short the matter, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated to a likely price to be charged for subsequent sale to be taxed by the device of measuring tax for the completed transaction which become subject of tax. 57. If the legislation can provide for a measure of tax on subject of tax by substituting any notional value, which at no point of time becomes part of or related to subject of tax, viz., sale of goods, then the fact that it is related to MRP loses its significance altogether. If this is permitted to be done the legislation can provide for any measure the purpose of applying the rate of tax, whether it is founded on MRP or any other fixed value which Legislature may provide will make little difference. It is not contended by the appellant that even the measure is not relatable to MRP, it can be substitute any value as a measure of tax. Subject of tax is not the goods or goods sold, but a transaction of sale of goods as defined under the Sales Act. 60. If section 4A is designed to bring a levy into existence which is divorced from the sale subject to tax under the Act, it is beyond legislative competence under entry 54 of List II of the Seventh Schedule. The notification to the extent it intends to levy tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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